# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 4 , 201 8 *

Decided April 5 , 201 8

Before

DIANE P. WOOD

, Chief Judge

WILLIAM J. BAUER

, Circuit Judge

MICHAEL S. KANNE

, Circuit Judge

No. 1 7

- 2138

CLEVELAND HARDY

, Plaintiff

- Appell ant

,

v

.

CITY OF CHICAGO and GARRY

MCCARTHY

, Defendant s

- Appellee s

. Appeal from the United States District

Court for the Northern District of Illinois

, Eastern Division.

No. 1 5 C 1174

Milton I. Shadur

, J udge

.

O R D E R

Cleveland Hardy, an officer in the Chicago Police Department, contends that the City and the former police superintendent, Garry McCarthy, violat ed his right to due

process by removing him from the position of sergeant without a hearing . He worked as a sergeant for about a week before the City discover ed that he had failed the promotional exam and refused to finalize his promotion

. The district judge entered

* We have agreed to decide the case wi thout oral argument because the brief s and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 1 7

- 2138 Page 2

summary judgment for the defendants , and we affirm. Having failed the promotional

exam, Hardy ha d no t acquired a property interest in the sergeant ’s position. So the

c ity’s removal of him from t h at position without a hearing did not offend due process

.

Hardy knows McCarthy personally. A fter McCarthy became Superintendent in

2011 , Hardy was one of his two driver s for roughly three years

. When the p olice

d epartment announced openings fo r the sergeant position, McCarthy and Hardy

discuss ed the possibility of Hardy applying. C ommand staff below the rank of deputy superintendent could nominate a candidate for this promotion as long as the candidate

had passed an exam administered in 2006

. (Th is requirement arose from the c ity’s adoption of a Hiring Plan in response to Shakman v. Democratic Organization of Cook County , No

. 69 C 2145 (N.D. Ill. filed Oct. 17, 1969 )

. ) The exam ’s announcement reiterated that to be eligible for promotion to serg eant , candidates must pass the exam.

It also said that “[a]t any time during the examination process, the Department of Human Resources and the Chicago Police Department reserve the right to modify the

... qualifications deemed appropriate to evaluate applic ants for this position.”

Hardy failed the exam . H e says that he never told McCarthy that he failed , and McCarthy did not check to see whether Hardy passed the exam . B ut McCarthy asked his chief of staff to “see if you could get Cleve that nomination [for promotion] if it’s

available

. ” The chief of staff turned to Commander Jonathan Johnson , who also did not check whether Hardy had passed the exam. Johnson nominat ed Hardy for promotion

and submitted Hardy’s application packet to the city’s Merit Select ion Board for review.

The Board did not recommend Hardy for promotion, but he briefly became a
sergeant anyway a fter McCarthy interview ed nominees and selected Hardy f or one of the openings. Hardy later attended and graduated from sergeant training at the Police Academy . Roughly a week after Hardy started work as a sergeant and purchased the sergeant’s uniform for $3,000 , the city’s Human Resources Department noticed tha t he had not passed the sergeant’ s exam

. Once this d epartment caught the error , it a lerted

the p olice d epartment’s h uman

- r esources office that Hardy had not passed the test. Th e police department told Hardy that he could not be a sergeant and cancelled his promotion

.

After the p olice d epartment withdrew Hardy’s promotion, the F irst D eputy Superintendent told him that the City had not always enforced the requirement that sergeant applicants pass the exam. According to Hardy, the First Deputy said “there areNo. 1 7

- 2138 Page 3

a lot of people on this job that did not have all qualifications and the superi ntendent made the decision, because he can, to promote [ sic]

... I know a guy right now that

didn’t even take a test at all , by the name of Jerry Masterson.”

Hardy turned to federal court, suing the City and McCarthy under 42 U.S.C. § 1983 for allegedly de priving him of his property interest in his promotion to sergeant without due process in violation of the Fourteenth Amendment

. During discovery Hardy sought from the City all documents relating to Masterson’s promotion to
sergeant, which occurred 11 years earlier . After a magistrate judge ordered the City to

turn them over , t he City responded that it had no records of Masterson’s exam performance . This prompted Hardy to ask the magistrate judge to bar the City from disputing that it allowed sergeants to retain their positions even when the City later found that they never qualified . The magistrate judge denied the motion but made t w o rulings. The judge prohibited the City from contending that Masterson was qualified for

his promotion to sergeant. And t he judge ruled that if the district judge found that Masterson’s promotion was relevant to Hardy’s case , Hardy could ask the district judge for “any inference in his favor.” Hardy never asked for any inference.

The City and McCarthy moved for summary judgme nt, and the district judge granted the ir motion s

. A reasonable factfinder could not conclude , the judge said, that Hardy had acquired a property interest in his promotion to sergeant . The judge explained that , b ecause Hardy had not pass ed the exam, the pro motion “was never lawfully his

. ” And t he judge rejected as hearsay Hardy’s assertion that the First Deputy

told him that the p olice d epartment hired Masterson as a sergeant even though he did not pass the exam . T herefore , the judge ruled

, Hardy did not establish a triable question on whether the City has ignored the exam requirement

.

On appeal Hardy asserts that he established a triable question about whether he

ha d a property interest in his promotion

. A plaintiff’s appointment to a police force

doe s not create a property interest in that position if the plaintiff concedes that he did

not meet a requirement for hiring. See Bailey v. City of Lawrence , 972 F.2d 1447, 1449 (7th Cir. 1992)

. This principle follows from the general rule that when a plaintiff concedes that he lacks the factual basis necessary for a property interest, due process is

not implicated

. See Codd v. Velger, 429 U.S. 624 , 627

– 28 (1977). Hardy admits that he did not pass the 2006 sergeant’s exam . Under the Hiring Plan and anno uncement for th at

exam, p assing was a requirement for becoming a sergeant . The City therefore couldNo. 1 7

- 2138 Page 4

remove him from a positi on for which he admits he was never qualified without offending due process.

Hardy responds that he was qualified because McCarth y could and did

“overrule” th e exam requirement . McCarthy did so , Hardy contends, by asking Johnson

to nominate Hardy for promotion , by choosing Hardy for promotion, and by th us exercising his right “to modify” the qualifications for sergeant

, as Hardy bel ieves the

exam’s announcement allowed . But for two reasons

, this argument is unpersuasive

. First McCarthy told his chief of staff only to see “if” he could get Hardy a promotion

nomination “if” it wa s available. Hardy presented no evidence suggesting that McCarthy or anyone in his chain of command ever knew t hat Hardy did not pass , let alone that McCarthy ordered Hardy promoted even if he had failed

. Second McCarthy

could not “overrule” the requirement that Hardy pass the exam

. To the contra ry, as stated in t he 2006 exam announcement that Hardy relies on

, the police department

could “modify” the qualifications for sergeant only “during the examination process

. ” That process ended long before McCarthy became Superintendent in 2011.

Hardy of fers two alternative argu ment s that are also unavailing. First h e argues that even if his promotion were invalid, a reasonable factfinder could conclude that he acquired a property interest in the job because he graduated from the Police Academy

, worked as a sergeant for over a week , and was chosen by McCarthy for promotion

. But given the requirement that he pass the exam, his awareness that he had failed it

, the

lack of evidence that McCarthy could or did abolish the requirement, and the fact that

the Ci ty did not put him on the payroll as a sergeant, his reliance on a personnel

mistake was unreasonable and did not create a property interest

. See Forgue v. City of Chicago , 873 F.3d 962, 970 (7th Cir. 2017) ; Wolf v. City of Fitchburg , 870 F.2d 1327, 1334 (7th Cir. 1989) (ruling that property interests cannot arise from “r epresentations of government officials who are not authorized to make such representations ”).

Second Hardy argues that a reasonable factfinder could conclude that the c ity’s history of “l oosely and subjectively” applying the exam requirement

, which he

contends is reflected in the case of Masterson , created a property interest in his position. For proof, he says th at the First Deputy Superintendent said that Masterson bec ame a sergeant even though he did not take the exam

. But a s the district judge correctly noted, Hardy’s statement is offered for the truth of the matter that he says the First D eputy
asserted and is therefore inadmissible hearsay. See F ED

. R. E VID

. 801(c), 802

. To avoid the hearsay problem, Hardy could have proffered sworn testimony from the First Deputy

,No. 1 7

- 2138 Page 5

but did not. He also could have ask ed the district judge to infer from the c ity’s failure to produce Masterson’s test records that Masterson was promoted despite n ever passing

the exam. But he did not do this either. Although Hardy complains on appeal about the City not producing Masterson’s test records, i t is too late now to argue for such an

inference here. See Puffer v. Allstate Ins. Co. , 675 F.3d 709, 718 (7th Cir. 2012) (“ It is a well

established rule that arguments not raised to the district court are waived on appeal. ”).

AFFIRMED